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As I noted a couple of weeks ago, the Supreme Court recently granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection. The cert petition presented three questions, but the case will likely center on the first:

The Florida Supreme Court invoked “nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a ''judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

This case gives the Court the opportunity to answer one of the great open questions in takings law: when, if ever, can a judicial decision constitute a taking of private property in violation of the Fifth Amendment’s Just Compensation Clause? There is a widespread assumption among many property professors that the answer to this question is “never.” After all, we teach cases like Matthews v. Bay Head, where the Supreme Court of New Jersey appeared to alter the state’s property law to allow public access to beachfront property that had previously been private. There is little doubt that if the legislature had required the same access it would have been a per se taking (see, e.g., Nollan, Loretto, Kaiser Aetna). But because the judiciary, rather than the legislature, made the change, there is a sense that the takings problem somehow disappears.

The Supreme Court has not squarely addressed the judicial takings issue, although there is some precedent from early substantive due process cases that might help the petitioners in Stop the Beach. The issue has also been addressed in some more recent concurring and dissenting opinions, and was raised at least by implication in Webb's Fabulous Pharmacies v. Beckwith. One of the most important statements on judicial takings by a member of the Court is the following passage from Justice Stewart’s concurrence in Hughes v. Washington:

Surely, it must be conceded as a general proposition that the law of real property is, under our Constitution, left to the individual States to develop and administer. And surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law, including the rules governing the property rights of riparian owners. . . . To the extent that the decision of the Supreme Court of Washington on [the property issue in dispute] arguably conforms to reasonable expectations, we must of course accept it as conclusive. But to the extent that it constitutes a sudden change in state law, unpredictable in terms of the relevant precedents, no such deference would be appropriate. For a State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all. Whether the decision here worked an unpredictable change in state law thus inevitably presents a federal question for the determination of this Court.

389 U.S. 295-97 (1967) (Stewart, J., concurring).

Both Hughes and Stop The Beach involve the doctrine of accretion, which at common law gave ownership of land that was gradually deposited by the ocean to the beachfront property owner. In Hughes, however, the beachfront land had been owned and conveyed by the United States before Washington became a state. The Court therefore held that the issue of accretion was governed by federal rather than state law, and concluded that, as a matter of federal common law, the accreted land was owned by the beachfront owner.

This issue of prior federal ownership is not present in Stop The Beach, where the Florida Supreme Court (over vigorous dissent) held that as a matter of Florida law, the beachfront owner did not have a property right in the accreted land. The petitioners argue that the Florida Supreme Court’s holding was contrary to more than a century of precedent, and therefore constituted an unconstitutional judicial taking of the beachfront owners’ property rights. I have not read the prior Florida caselaw, but from reading the briefs on cert and the opinions in the Florida Supreme Court, I think that the petitioners make a good case that the Florida Supreme Court’s decision represents a radical departure from its prior law. I seriously doubt that the Court would have granted cert it had been able to find precedential support for the Florida Supreme Court’s position. It is also notable, though perhaps not directly relevant, that the Florida Supreme Court’s position is contrary to the U.S. Supreme Court’s statement of the common law in Hughes.

Stop The Beach therefore appears to squarely and cleanly present the judicial takings issue. Below are some thoughts on how the case might play out and what’s at stake for the larger law of regulatory takings. First a word of disclosure – I’m on the record (albeit in my student note) as favoring Supreme Court review of state court property decisions under a judicial takings theory.

(1) There are two different ways in which the judicial takings issue can present itself. First, a state legislature might pass a law that appears to take property rights. In deciding a takings challenge to the statute, a state court might hold that the claimed property rights did not exist, and reject the takings challenge because there was nothing to take. Second, in a case brought by private litigants, a state court might make a major change to the state’s existing property law. Matthews v. Bay Head is an example of the second type of case. Stop the Beach is an example of the first – the underlying litigation was about provisions of Florida’s Beach and Shore Preservation Act, and the Florida Supreme Court insulated the Act from constitutional problems by holding that there was no protected private property interest to be taken. There isn’t much of a theoretical basis for a distinction between the two categories, but the Supreme Court’s prior caselaw might be marginally more applicable to the facts in Stop the Beach because of the legislature’s involvement. As Buzz Thompson has noted, the Court has held in cases such as Muhlker v. New York & Harlem Railroad, 197 U.S. 544 (1905) that it can review a state court’s property rights determination “where a property holder challenge[s] a legislative or executive action as a taking and the state court ha[s] ruled that there was no property to take.” Barton H. Thompson, Jr., Judicial Takings, 76 Va. L. Rev. 1449, 1467 (1990). The Supreme Court recently noted in Lingle v. Chevron that it can be problematic to rely on early substantive due process cases as precedent in contemporary regulatory takings cases, but I would expect cases like Muhlker to come into play in Stop the Beach.

(2) I would guess that Justice Scalia was instrumental in obtaining the cert grant. I predict that the Supreme Court will find a taking in Stop the Beach and that Justice Scalia will write the opinion of the Court. This, of course, is speculation, but it is informed speculation. Justice Scalia has argued in the past that the Court should take up the judicial takings issue. In a lengthy dissent (joined by Justice O’Connor) from a denial of cert in Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994), Justice Scalia wrote:

As a general matter, the Constitution leaves the law of real property to the States. But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458, 78 S.Ct. 1163, 1168-1170, 2 L.Ed.2d 1488 (1958), neither may it do so by invoking nonexistent rules of state substantive law. Our opinion in Lucas, for example, would be a nullity if anything that a state court chooses to denominate “background law”-regardless of whether it is really such-could eliminate property rights. “[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.” Hughes v. Washington, 389 U.S. 290, 296-297, 88 S.Ct. 438, 442, 19 L.Ed.2d 530 (1967) (Stewart, J., concurring). No more by judicial decree than by legislative fiat may a State transform private property into public property without compensation. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 452, 66 L.Ed.2d 358 (1980). See also Lucas, supra, 505 U.S., at 1031, 112 S.Ct., at 2901. Since opening private property to public use constitutes a taking, see Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 107 S.Ct. 3141, 3145, 97 L.Ed.2d 677 (1987); Kaiser Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 392, 62 L.Ed.2d 332 (1979), if it cannot fairly be said that an Oregon doctrine of custom deprived Cannon Beach property owners of their rights to exclude others from the dry sand, then the decision now before us has effected an uncompensated taking.

I suspect that Justice Scalia has been looking for a suitable judicial takings case ever since. The petitioners in Stop the Beach note that at least 15 cases have sought cert on the judicial takings issue. I would guess that many of those previous cases had various problems with them that made them poor cert candidates. This is one reason why I think that the Court (or some members, at least) were reasonably confident that the Florida Supreme Court opinion is not supported by prior Florida law – I don’t think they would have granted cert otherwise.

(3) The sentence referencing Lucas in Justice Scalia’s Cannon Beach dissent helps to explain how the judicial takings issue fits into the Court’s larger regulatory takings jurisprudence. In Lucas, the Court held that a severe limitation on property rights that would constitute a per se taking would only be constitutional if the state’s background law of property or nuisance established that the property owner had no property rights to begin with. I have heard anecdotally that some state courts have been aggressive in using the background principles of state law exception to defeat takings claims, perhaps going to the extent of creating such background principles out of what Justice Scalia terms “nonexistent rules of state substantive law”. Note, by the way, that the cert petition in Stop the Beach quotes this language in describing the Florida Supreme Court’s action. If the Court holds that such a judicial reformulation of property rights is unconstitutional, then it would place a practical limit on state courts’ ability to use the background principles exception to defeat takings claims.

(4) It should be obvious that accepting the idea of judicial takings would put the Supreme Court in the awkward position of reviewing a state court’s decisions on the substance of state property law. I doubt that the Court, if it accepts the idea of judicial takings, would defer to a state court’s characterizations of their own decisions – to do so would be to replace the “stupid staffer” that Justice Scalia referred to in Lucas with the stupid law clerk or stupid state court judge. So the Court would need to review the state court’s analysis to see if it was supported by precedent. I expect that the Court would only find a judicial taking if the state’s prior law was remarkably clear and that the court decision under review represented a clear departure from that precedent. Otherwise, the Court risks becoming the court of last resort in any state law property case.

(5) I worry that a decision in favor of the petitioners in Save the Beach will contain some language that can be read to place a broad limit on states’ ability to reform their property law. Justice Stewart was clear in Hughes that this was not the result that he had in mind: “surely Washington or any other State is free to make changes, either legislative or judicial, in its general rules of real property law . . . .” The easiest way to avoid this problem in Stop the Beach would be to simply hold that the judiciary cannot achieve through deciding a case what the legislature cannot do by statute. The Court’s current caselaw is clear that the legislature cannot transfer private property to public ownership without compensation, and this is what happened in Save the Beach if petitioners’ factual claims are accurate. This transfer of ownership to the public might be a good way to distinguish between judicial alterations of property law that are takings and those that are not. Beach access cases come up all the time in the judicial takings literature because they tend to present issues of public ownership or public access. Similarly, the property reform that was invalidated in Hodel v. Irving involved a statute that escheated certain property interests to the government. In Lucas, the ability to build on the property was destroyed outright, not transferred to another person. In contrast with these types of scenarios would be cases that involved alteration of property rights between private parties. Statutes and judicial decisions alter, and sometimes destroy, property rights all the time. This does not seem to present a takings problem when the result is that one private party owns the property rather than another private party. For example, the abolition of the fee tail in many states destroyed the reversionary right in the original owner, effectively transferring that right to the holder of the present interest. Alterations in almost any part of property law, and many alterations in other areas such statutes of limitations and the law of contracts, can result in A owning a particular property rather than B owning that property. It would be a big problem if stray language in a Supreme Court case raised questions about states’ ability to make these basic changes to the law.

(6) I wonder about procedural issues if the Court allows judicial takings claims. Will litigants have to litigate these issues in state court, and rely on cert petitions to remedy judicial takings, or will litigants be able to bring takings claims against the states based on judicial decisions in the lower federal courts? I’m not an expert on Williamson County and San Remo, and don’t know how those cases might impact the issue.

(7) There are two other questions presented in the cert petition that might be wild cards:

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

I read the first of these questions as raising a substantive due process claim and the second as raising a procedural due process claim. I’m not sure how these might play out, though I note that Justice Kennedy has expressed sympathy for due process arguments in the takings context – see, for example, his concurrence in Lingle.

(8) Here’s my guess on how the case comes out: 5-4 in favor of petitioners; opinion of the Court by Justice Scalia, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito. [UPDATE: I am fully aware of the Court's procedures for allocating writing assignments for majority opinions; my point in predicting that Justice Scalia will author the majority is that I think he has something that he wants to say in this case, and that he might try to seek out the writing assignment in this case]. Possible concurrence on due process grounds by Justice Kennedy. Justices Stevens, Ginsburg, Breyer, and Sotomayor if confirmed, dissenting, with Justice Stevens especially likely to write. This may be a case where the replacement of the moderate-conservative Justice Souter with the moderate-liberal Judge Sotomayor might make a difference in the voting, if not in the outcome. Unlike earlier liberal justices like William Brennan (see, e.g., his dissent in San Diego Gas and Electric), the liberal wing of the current Court has rarely expressed much sympathy for regulatory takings claims. Justice Stevens, of course, dissented in Penn Central, but has been the leader of the anti-regulatory takings wing of the Court since at least the mid-1980’s.

(9) If you are new to the judicial takings issue, here are four articles to read: (a) Buzz Thompson’s article in the Virginia Law Review mentioned above – it is the classic on the subject; (b) David Bederman’s The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375 (1996); (c) Roderick Walston’s The Consitution and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379; and (d) David Sarratt’s Judicial Takings and the Course Pursued, 90 Va. L. Rev. 1487 (2004).

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» Recommended reading from Administrative Law Prof Blog
Considering the overlap between "takings law" and administrative law, I commend to you a thoughtful essay by Ben Barros (Widener) on the PropertyProf Blog, "What’s At Stake in Stop the Beach Renourishment". Prof. Barros discusses the U.S. Supreme Court... [Read More]

Tracked on Jul 16, 2009 2:37:40 PM

Comments

BB

Thanks. Very useful.

Citation to student note, please?

ZBP

Posted by: Zyg Plater | Jul 2, 2009 6:54:38 AM

I tend to think that, from a jurisprudential stand point, this is not a taking. There is at least a legal fiction that judges don't make law, they only decide what the law already is. Therefore, a judicial decision finding that you don't have a particular property right means that you never had that property right and have no grounds to complain that that property right was taken.

It would seem like a decision in favor of the property holders here risks setting up a scenario where every case awarding property rights, will now be subject to federal review to determine if the judge was making new law or just enforcing old law. This would not just include questions, such as this one, where the judge is determining if the public have access to the property, or if the owner can use the property in a particular way, but also cases ranging from the interpretation of real estate contracts to how property is distributed in a divorce.

Posted by: Robert Lewis | Jul 2, 2009 7:58:23 AM

Zyg, the student note is "Defining 'Property' in the Just Compensation Clause, 63 Fordham L. Rev. 1853. I talk about judicial takings beginning on page 1873.

Robert, I think the second half of your comment gets to what could be a big issue. But I don't think that every judicial decision that changes the law of property, or the law affecting property (which is much broader), would be a taking. Among other things, I think that a very strong case can be made under the Court's current jurisprudence that most legislative alterations in property rights are not takings, even if they are retroactive. If this is right, then the same act done by the judiciary would also not be a taking.

Posted by: Ben Barros | Jul 2, 2009 8:34:18 AM

Very interesting -- thanks, Ben! And I'm with Zyg - if a judicial decision affecting property rights is a taking, where does the line get drawn? It seems like a lot of cases will be affected. But I guess the Supreme Court will tell us...

As a side note, this case has to win at least an Honorable Mention in the "Awkwardly Named Plaintiffs" category.

Posted by: Aaron Schwabach | Jul 2, 2009 10:50:12 AM

Almost the exact same scenario is playing out with some areas of Chicago's private beach frontage. Read about it here: stopthelandfill.org

I have enjoyed reasding your comments on this ruling... Do you see any bright line differences between Scalia's and Kennedy's respective opinions/approaches to dealing with this? Any ideas as to what other situations would force the Court to decide this issue? It seems that if there was a case to force the decision, the Court would lean towards Kennedy's approach when adding Breyer back into the mix (loosely basing this on the McDonald case decision). Any thoughts?